This copy is for your personal non-commercial use only. To order presentation-ready copies of Toronto Star content for distribution to colleagues, clients or customers, or inquire about permissions/licensing, please go to: www.TorontoStarReprints.com

Supreme Court of Canada strikes down federal prostitution laws

The Supreme Court of Canada unleashed a seismic social, legal and political debate Friday by giving the federal government just 12 months to re-draft unconstitutional criminal laws or allow prostitution to flourish

Terri-Jean Bedford leaves the Supreme Court of Canada in Ottawa Friday morning, Dec. 20, 2013 after learning Canada's highest court struck down the country's prostitution laws in their entirety in a unanimous 9-0 ruling. (Adrian Wyld / THE CANADIAN PRESS)

Ice coats tree branches outside of the Supreme Court of Canada in Ottawa. (Adrian Wyld / THE CANADIAN PRESS)

Terri-Jean Bedford has been at the forefront of the movement to legalize bawdy houses. (Colin McConnell / Toronto Star) | Order this photo

OTTAWA—The Supreme Court of Canada unleashed a seismic social, legal and political debate Friday by giving the federal government just 12 months to redraft unconstitutional criminal laws or allow prostitution to flourish as would any other business.

“Politicians though they may know us as clients, they do not understand how sex work works,” said plaintiff Valerie Scott, a former prostitute. “They won’t be able to write a half-decent law, it will fail.”

In a unanimous 9-0 ruling, Chief Justice Beverley McLachlin wrote: “It is not a crime in Canada to sell sex for money.” However the court found three key Criminal Code prohibitions — on brothels, living on the avails of prostitution and communicating in public for the purposes of buying and selling sex — are unconstitutionally broad and breach the Charter rights of vulnerable and marginalized women practising the world’s oldest profession.

By driving them into unsafe streets, often leaving them at the mercy of potentially drunken, violent or sexually reckless clients who spurn condom use, it violates their constitutional guarantee to “security of the person.”

Article Continued Below

“Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes,” the court said. The provisions do not “merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks.”

The court cited the plight of aboriginal women and the marginalized victims of serial killer Robert Pickton, noting a Vancouver “safe house” set up to protect street walkers closed under threat of criminal sanction.

The prostitutes who won erupted in cheers that echoed through the august Supreme Court building. Valerie Scott said sex workers should be able to work with the Canada Revenue Agency, be protected by occupational health and safety rules and workers’ compensation and “pension plans! Yes!”

They demanded Parliament legalize indoor brothels, and the hiring of security staff, drivers, bodyguards, accountants and receptionists. Prostitution, they say, should be treated, taxed and regulated by municipal or provincial schemes that would have women’s health and safety at the fore.

For now, there is a legal and political dilemma.

Police and Crown attorneys across the country will have to decide what prostitution charges, if any, to pursue while Ottawa figures out its response.

“Our initial review of the ruling is that it takes into account the impact of prostitution on communities,” said Ottawa Police Chief Charles Bordeleau in a written statement, adding community concerns and complaints are the “key drivers” of enforcement. “Our understanding is that those laws remain valid and available to police.”

But Bordeleau signalled he is awaiting political direction from Parliament and the Ontario attorney general.

Brendan Crawley, spokesman for Ontario attorney general and Crown law office, said the province is reviewing the decision and would not comment on whether it will instruct police officers and Crown prosecutors to actively enforce laws that remain in effect for the coming 12 months.

The federal Conservative government reaction was swift and disapproving.

A “concerned” Justice Minister Peter MacKay said “we are exploring all possible options to ensure the criminal law continues to address the significant harms that flow from prostitution to communities, those engaged in prostitution, and vulnerable persons.”

The court did not try to craft a more constitutional solution. Instead, the judges tossed the “delicate” matter back to legislators. It left open the possibility that a more narrowly targeted criminal scheme could be enacted.

Nevertheless, the ruling (signed by five judicial appointees of Prime Minister Stephen Harper) may well dovetail into a view the Conservative government has long held — that judges are too activist and eager to strike down laws.

Harper said in a year-end interview with Postmedia he is determined to bend the justice system to his view that victim rights must be at its centre, saying he intends to make changes to appointments to the bench in order to ensure measures like the maligned victims surcharge fee on offenders are imposed.

The Conservatives will have a range of political allies if they move to recriminalize aspects of prostitution activity, and not just among religious groups or their own grassroots members who last month voted in favour of a “specific plan to target the purchasers of sex and human trafficking markets through criminalizing the purchase of sex as well as the acts of any third party attempting to profit from the purchase of sex.”

Women’s groups are divided on the right solution to ending violence against marginalized sex trade workers, with many supporting criminal bans on the purchase of sex.

Lawyers Kim Pate and Janine Benedet, who intervened on behalf of the Women’s Coalition for the Abolition of Prostitution — which included the Canadian Association of Elizabeth Fry Societies, Canadian Association of Sexual Assault Centres, Native Women’s Association of Canada and the Vancouver Rape Relief Society — were dismayed by the court ruling.

They called for Ottawa to embrace the Nordic model of legislation, which criminalizes the purchaser of sex and the act of procuring of prostitution services. It also limits legal sex-for-sale to indoor venues, usually a woman’s own home or premises. Others point to New Zealand, where prostitution activity is decriminalized, but nevertheless regulated by municipalities.

For the trio of victorious prostitute plaintiffs, however, Friday was a day of celebration.

Scott, leather-whip-wielding dominatrix Terri Jean Bedford, and Amy Lebovitch laughed and cheered. Lorna Bird, of Sex Workers United Against Violence in Vancouver, called it a “huge victory.”

More from the Toronto Star & Partners

LOADING

Copyright owned or licensed by Toronto Star Newspapers Limited. All rights reserved. Republication or distribution of this content is expressly prohibited without the prior written consent of Toronto Star Newspapers Limited and/or its licensors. To order copies of Toronto Star articles, please go to: www.TorontoStarReprints.com